NOW could be the time for “Rangers” to take the Football League (FL), the Barclays Premier League (BPL) and any other opposing football authorities to court under UK competition law for orders forcing their entry to English domestic leagues.
In my opinion they would have a good prospect of success and of emulating Jean-Marc Bosman in overturning football’s anticompetitive practices.
Essentially, in competition law, Rangers is a business undertaking and should be free to provide its services as a football club to the buyers of such services anywhere in the UK. The buyers are, principally, the organisers of domestic football league tournaments, who distribute shares of revenue in return. The FL and BPL are cartels that abuse their dominant position on UK football markets through rules which exclude clubs that do not play their home games in England or Wales. Rangers’ case would be founded on two pillars of UK competition law, which are applied in accordance with EU law and are directly enforceable by individual undertakings in the ordinary courts.
The first is the prohibition against agreements, or concerted practices, between undertakings or decisions of associations of undertakings which substantially restrict competition within the UK or part of it (chapter one, Competition Act 1998).
The second is the prohibition against abuse by one or more undertakings of a dominant position on a market which restricts competition on that market or another directly affected market, in the UK or part of it (chapter two of the 1998 act).
The FL and BPL are collectively dominant in the UK in the market for the provision of the services of organising and promoting football league tournaments. They purchase the services of professional clubs in exchange for shares of revenue made up, principally, of broadcast income.
In that market, the FL and BPL form a buyer’s cartel, rather than a seller’s cartel, so their market share is measured by the amount of purchasing they do. It seems clear that they distribute more than 40 per cent of all such revenues distributed by all such organisers in the UK, which is the accepted upper threshold for establishing certain dominance under the second prohibition (25 per cent is the accepted upper threshold for establishing a “substantial restriction” of competition under the first).
The FL and BPL’s rules, along with those of other football bodies such as SPL, SFA, FA, Uefa and Fifa, effectively limit Rangers to playing all their domestic football only within the territory in which they play their home games, namely, Scotland.
That is a hardcore competition abuse and Rangers would have a good case in principle.
Success in national courts in competition cases challenging sporting organisations is by no means unprecedented. The Bosman case is a prime example.
Since Bosman, Fifa and Uefa have repeatedly lobbied for EU legislation and, latterly, non-binding declarations that the splitting of domestic football into national territories within the EU is, nonetheless, compatible with competition law. They have been consistently refused. Most recently, the EU Commission’s 2007 white papers on sport, later approved by the EU Parliament, did not even suggest the exemption of such territorial organisation of football or other sports from competition law.
What probably stopped Rangers, and Celtic, taking this issue to court were the rules in Fifa’s, Uefa’s and national associations’ constitutions which prohibit clubs from taking action against any football bodies in the ordinary courts. While Rangers were competing at the top level in Scotland and trying to be competitive in Europe, with all the costs that required, they may have felt the risk was too great. Now that they are out of Europe for a number of seasons and have been banished to the Scottish third division, they have little to lose and may have much to gain by finally taking this competition case to court.
• Eoghainn Maclean is an advocate practising competition and other commercial law. He is a member of Ampersand Stable.